Date: 20080115
Docket: T-1171-07
Citation: 2008 FC 54
Toronto, Ontario, January 15,
2008
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Applicant
and
GHOLAM
HASSAN AKBAR POUR
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
Minister appeals from the decision of a Citizenship Judge granting citizenship
to Gholam Hassan Akbar Pour. The Minister asserts that the judge erred in
counting the period of time that Mr. Akbar Pour was on probation, in determining
that he met the residency requirements of the Citizenship Act, R.S.,
1985, c. C-29.
[2]
For
the reasons that follow, I agree that the Citizenship Judge erred in this
regard. As a consequence, the appeal will be allowed.
Background
[3]
Mr.
Akbar Pour is a citizen of Iran, who came to Canada as a
permanent resident in 1991. On June 8, 2006, he signed his application for
Canadian citizenship. It is not disputed that Mr. Akbar Pour was physically
present in Canada for the four
years immediately preceding his application for citizenship.
[4]
On
December 11, 2002, Mr. Akbar Pour was convicted of causing a disturbance,
contrary to paragraph 175(1)(a) of the Criminal Code. He was given a
suspended sentence of 18 months, and was put on probation.
[5]
Notwithstanding
that Mr. Akbar Pour failed to disclose the fact that he had been on probation
during the four year period preceding his application for citizenship, it is
apparent from the decision under review that the Citizenship Judge was aware
that Mr. Akbar Pour had been on probation for 18 months during this period.
[6]
On
May 1, 2007, the Citizenship Judge rendered her decision in which she stated
that:
Mr. Akbar Pour is missing 172 days to
meet the basic requirement of residence in Canada due to his 18 months probation. His
application for citizenship is approved. I believe that he centralized his life
in Canada.
Analysis
[7]
This
appeal involves the interpretation of the Citizenship Act, and its
application to the facts of Mr. Akbar Pour’s situation. I need not decide whether
the appropriate standard of review to be applied to the decision of the
Citizenship Judge is that of reasonableness or correctness, however, as I am
satisfied that the decision was unreasonable.
[8]
The
statutory provisions relevant to this case include section 5 of the Citizenship
Act, R.S., 1985, c. C-29, which provides that to be eligible for
citizenship, an applicant must be a permanent resident, and must accumulate
three years of residence in Canada in the four years immediately preceding the
application.
[9]
Also of relevance is section 21 of the Citizenship Act which
states:
|
21. Notwithstanding anything in this Act, no period
may be counted as a period of residence for the purpose of this Act during
which a person has been, pursuant to any enactment in force in Canada,
(a) under a probation order …
|
21. Malgré
les autres dispositions de la présente loi, ne sont pas prises en compte pour
la durée de résidence les périodes où, en application d’une disposition
législative en vigueur au Canada, l’intéressé:
a) a été
sous le coup d’une ordonnance de probation …
|
[10]
As
to how the residency requirement in the Citizenship Act is to be
interpreted, different judges in this Court have taken different approaches to
this question. A Citizenship Judge is entitled to adopt any of these various
approaches in determining whether a particular applicant has satisfied the
residency requirements of the Act.
[11]
In
this case, the Citizenship Judge chose to apply the “centralized mode of
existence” test first articulated in Re Koo, [1992] F.C.J. No. 1107, where
Justice Reed held that physical presence in Canada was not required in order to
be able to satisfy the residency test set out in the Citizenship Act.
Rather, the test should be formulated as whether the applicant “regularly, ordinarily,
or customarily lives” in Canada.
[12]
Put
another way, the question is whether the applicant has centralized his or her
mode of existence in Canada.
[13]
The
use of this test allows applicants for citizenship who may not have had 1085
days of physical presence in Canada to obtain citizenship, if they can
demonstrate that they have nevertheless centralized their mode of existence in Canada during the four years
preceding their application.
[14]
In
other words, the Re Koo approach allows for a person to be deemed to be
resident in Canada at times that they were
not actually physically present in this country.
[15]
The
reasons of the Citizenship Judge are sparse, to say the least. However, it
appears that the Judge purported to apply the “centralized mode of existence”
test to find that Mr. Akbar Pour satisfied the residency requirement of section
5 of the Act, notwithstanding the fact that he had been on probation for 18
months of the four years immediately preceding his application for citizenship.
[16]
This
was unreasonable, as section 21 of the Citizenship Act clearly prohibits
time spent on probation from being counted as a period of residence for the
purpose of the Act.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that
this appeal is allowed, and the decision of the Citizenship Judge dated May 1, 2007
is quashed.
“Anne Mactavish”
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